Today Cato Senior Fellow Nat Hentoff is 89! Happy Birthday Nat!

Check out the documentary film on his civil liberties work and writings on jazz, The Pleasures of Being Out of Step.

Here is the trailer:

“The man in whose power it might be to find out the means of alleviating the sufferings of the poor would have done a far greater deed than the one who contents himself solely with knowing the exact numbers of poor and wealthy people in society.”

—Vilfredo Pareto, “The New Theories of Economics,” Journal of Political Economy 5: 485–502 (1896–97).

This month at Cato Unbound, we’re discussing Edward Snowden’s NSA revelations.

We mostly know the story, but it bears repeating: One year ago this week, Glenn Greenwald wrote a news story that would change the world forever. In it, we learned that the National Security Agency had been secretly collecting enormous amounts of telephone metadata on what were presumably ordinary American citizens. The agency had done so without a warrant and without suspicion of any indiviudal person. The revelation changed forever how Americans think about national security, privacy, and civil liberties in the digital age.

More revelations soon followed. Among many others, these included NSA surveillance of web activity, mobile phone location data, and the content of email and text messages. The NSA also conducted many highly embarrassing acts of surveillance against allied or benign world leaders, including German Chancellor Angela Merkel and the conclave that recently elected Pope Francis. It had subverted commonly used encryption systems. It had co-opted numerous tech companies in its plans. Its leaders had repeatedly lied to, or at the very least misled, the U.S. Congress. 

How far should surveillance go? What has been the value of the information gained? What have we given up in the process? What are the risks, should malign actors ever get their hands on the controls of the system?

We are able to ask these questions today because of one individual: Edward Snowden, a systems administrator for the NSA who chose to make public the information to which he had access. We have no choice now but to debate it. That’s simply what democracies do whenever such momentous information becomes public.

Joining us at Cato Unbound this month are four individuals with extensive knowledge in the fields of national security and civil liberties: Cato Senior Fellow Julian Sanchez, Brookings Institution Senior Fellow Benjamin Wittes, Georgetown University Professor Carrie F. Cordero, and independent journalist Marcy Wheeler. Each brings a somewhat different perspective on the matters at hand, and we welcome them all to what is sure to be a vigorous debate.

Over at Cato’s Police Misconduct web site, we have selected the worst case for May. It was the Georgia police officers who threw a flashbang grenade into an infant’s crib after ramming the door open to look for a drug dealer. The officers were executing a no-knock warrant when they threw the flashbang grenade through the cracked door without looking or knowing who was inside the room. The grenade (sometimes the government uses the euphemism “distraction device”) landed on the 19-month-old’s pillow and exploded, causing severe burns to his face and chest. The child and his relatives, who were also sleeping in the converted garage room, were temporary visitors in the home because theirs had recently burned down. The person the police were looking for was not there.

The officers involved expressed regret, and said that they had no idea there was a child present and that if they had, they would have done things differently. The police chief said the incident is going to make them “double question” next time. Hmm. First, why would anyone not already “double question” before blindly tossing a grenade into a room? Second, is the indication that a child is present really the only reason not to go full-Rambo on a house where human beings live? Think about it. Even if the police had solid proof that an adult was selling marijuana, meth, or cocaine from his home, is a flash bang grenade on his pillow a legit police tactic? A legit risk?

Cases like this one not only underscore the brutal collateral damage of the drug war, but also the lack of adequate oversight over police raids like this one. Yes, there will be a lawsuit, but that’s an insufficient response.

Check out the Cato raid map for more police raids that went awry.

Kevin Sabet is a former senior policy adviser to then–White House Drug Czar Gil Kerlikowske. In this interview with the Heritage Foundation, Sabet discusses his recent book, Reefer Sanity: Seven Great Myths about Marijuana. Let’s examine Sabet’s “Seven Myths.”

Myth #1. I can’t become addicted to marijuana.

That might be a myth, but who cares? Addiction is not, per se, a problem for society or an indvidual; just think about how many people are addicted to caffeine.

Myth #2. Today’s marijuana is the same old Woodstock weed my parents used.

True. Potency is now higher. But who cares? If a given puff has more THC, users can get high while inhaling less. That does not mean people get more stoned.  

Myth #3. Smoking marijuana once in a while won’t harm me as a teen.

No statistically valid study finds negative health effects from occaissional use. See here for an excellent debunking of science that claims otherwise.

Myth #4. Marijuana is not tobacco — it won’t harm my lungs.

Little evidence finds that marijuana smoking harms the lungs. Most users do not puff all day, every day.

But even if marijuana does harm the lungs, this is an argument for legalization. When marijuana is legal, users can more readily find high potency marijuana, which, as noted above, means less inhalation. Legalization also faciliates ingestion methods other than smoking (e.g., vaporization, edibles), which reduces risks to the lungs.

Myth #5. I can’t die from marijuana use.

The number of documented deaths from marijuana use is infinitessimal. Does Sabet want to ban Ibuprofen? Swimming pools? Peanuts? Penicillin?

Myth #6. Marijuana is medicine.

Why does it matter whether marijuana is medicine? True, some prohibition opponents base their case on marijuana’s reputed medicinal value, but the case for legalization is strong regardless. Bombay Sapphire martinis are not “medicine,” but they make me feel better at the end of the day (and I’m glad they are legal).

Myth #7. Marijuana will make me a more focused and better driver.

Give me a break. Perhaps a few zealots have made this claim, but virtually all legalizers agree that people should not drive under the influence of marijuana.

Bottom Line: Sabet’s seven myths are spin, pure and simple.

In today’s ruling in Bond v. United States, the Supreme Court was obviously right to reverse as federal overreaching the conviction of a woman who used certain chemicals to attack her husband’s paramour. This was a “purely local crime,” and the decision to prosecute Carol Anne Bond for it under a law that implements the international Chemical Weapons Convention was an abuse of federal power.

But in deciding the case so narrowly, creatively reinterpreting an expansive federal statute instead of reaching the constitutional issue at the heart of this bizarre case, the Court’s majority abdicated its duty to check the other branches of government. Bond was a case about the scope of the treaty power—can Congress do something pursuant to a treaty that it can’t otherwise do?—and yet the majority opinion avoided that discussion altogether in the name of a faux judicial minimalism. That’s not surprising given that its author is Chief Justice Roberts, who goes out of his way to avoid hard calls whenever possible. (Sometimes the practical result is still the right one, as here, sometimes it’s disastrously not, as in NFIB v. Sebelius, the Obamacare case, and sometimes even Roberts finds it impossible to avoid the Court’s constitutional duty, as in Citizens United and Shelby County.)

It was thus left to Justice Scalia, joined by Justices Thomas and Alito (in part), to do the hard work—to make those balls-and-strikes calls that Roberts promised at his confirmation hearing—and repudiate Missouri v. Holland, the 1920 case that’s been understood to mean that the federal government can indeed expand its own power by agreeing to do so with a foreign treaty partner. (Scalia’s opinion tracks Cato’s amicus brief closely, and cites my colleague Nicholas Quinn Rosenkranz’s groundbreaking work in this area.)

One other takeaway here is that the Obama administration has yet again lost unanimously at the Supreme Court, adding to its record number of goose eggs—particularly in cases involving preposterous assertions of federal power. Here Chief Justice Roberts provides the apt langiappe: “The global need to prevent chemical warfare does not require the federal government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”

As we head into the last month of the Supreme Court term — the Court releases its final, typically highest profile, opinions the last week of June — it’s time to take a deep breath and survey the lay of the land. Here’s what we can expect in coming weeks as the justices rush to get their final opinions out before heading out on their summer vacation/​lecture/​exile:

1. Currently scheduled opinion-release days are June 2 (this coming Monday), 9, 16, 23, and 30. I’d expect the Court to cut June 30 — I’m sure some of the justices already have travel planned for that week — and add 3–4 more opinion days the weeks of June 9, 16, or 23. Each week’s extra days are typically announced on the Monday of the given week.
2. There are 25 cases outstanding, most notably Bond (treaty power, argued in November), Noel Canning (recess appointments, January), McCullen (abortion-clinic buffer zone, January), Harris (forced unionization of home healthcare aides, January), Hobby Lobby/Conestoga Wood Specialties (Obamacare contraceptive mandate, March), Susan B. Anthony List (criminalizing false political speech, April), and Riley/Wurie (cell phone searches, April).

As for how all these cases will turn out, all I can say is that it’s fortunate that I’m not paid for my predictive abilities because I don’t think anyone could make a living doing that. Unlike many Court-watchers, however, I’m happy to go on a limb with my best guesses at what’ll happen:

Bond (Cato’s brief)

This one is likely to come down this coming Monday because it’s the case from the November sitting left (and there are none from October, and only one from December). This one is perhaps the most difficult to gauge of the end-of-termers. The oral argument was all over the place, with the justices not really satisfied with what either Solicitor General Don Verrilli or (Mrs. Bond’s super-lawyer) Paul Clement argued. I don’t think that the government will get a ruling eplaining that a treaty can expand Congress’s powers. The Court is also wary of making sweeping constitutional rulings when it can avoid it, however, so it’s unlikely that Missouri v. Holland will be overruled. The most likely result would be a ruling for Bond on the ground that her prosecution was beyond federal power here. Whether that means Missouri is limited in any way or the ruling effectively applies only to this bizarre case is anybody’s guess. Whatever happens, it’s likely that Chief Justice Roberts will be the lead author because he’s the only one without a majority opinion from the November cases.

Noel Canning (Cato’s brief)

The administration will likely suffer a big, near-unanimous, loss here; the only real question is how broad a rule will the Court announce (the broader, the less unanimous). If I had to bet, I’d say that seven justices will side with the challengers, agreeing with Miguel Estrada, who argued on behalf of amici Republican senators that regardless of the scope of the recess-appointment power, it is the Senate that determines when it’s in recess, not the president. A few justices would likely then join a separate opinion going further, limiting the power to inter-session recesses or to vacancies that arise during recesses. Only Justices Ginsburg and Sotomayor are likely to dissent.

McCullen (Cato’s brief)

The views of Chief Justice Roberts and Justice Kagan seem to be the key ones here; there are clearly four votes to strike down a 35-foot buffer zone and three to uphold it. Kagan seemed taken aback at how large this no-speech, no-entry zone was, encompassing public sidewalks. Roberts seemed to be searching for a practical solution to the problem. But it’s hard to see a Court that in recent terms has struck down laws against funeral protests and violent videogames upholding the law in this context.

Harris (Cato’s brief)

This is one of the very rare cases where Justice Scalia is the swing vote. At oral argument, Justices Alito and Kennedy (and, presumably, the silent Thomas) seem ready to overturn the 1977 case (Abood) that has allowed compelled contributions for certain union activities, with Chief Justice Roberts also on the workers’ side for a different reason. The “liberal” justices, meanwhile, were foursquare on the side of the pro-union Illinois law (which has equivalents in about a dozen other states). Scalia’s main concern seemed to be about how to draw the line between union actions meant to better working conditions — such as collective bargaining — versus other public policy-related activities that state governments can’t force individual workers to support. Given that his is the deciding vote, it’s likely that Scalia will end up writing the majority opinion, which gives all of us more reason to anticipate the Court’s ruling.

Hobby Lobby/Conestoga (Cato’s brief)

There should be about seven votes to reach the merits of this controversy; that is, that someone (whether the privately held corporations at issue or their owners) has standing to challenge the HHS rule requiring employers to cover 4 contraceptives (of 20 on the full list) as part of their Obamacare health insurance. On the merits, it’s more likely than not that the challengers will win because the government hasn’t shown that its mandate is the most narrowly tailored way of achieving a compelling interest — which is what it must do to justify imposing a substantial burden of religious exercise under the law at issue, the federal Religious Freedom Restoration Act. While Justice Breyer appeared skeptical of the government’s position at oral argument, he’ll probably still dissent to prevent the ruling from being six men versus three women.

SBA List (Cato’s hilarious brief)

Ohio’s solicitor general, an excellent attorney put in a difficult position, was met with an incredulous bench at oral argument. I don’t think we’ll see a single vote denying the plaintiff advocacy group standing to challenge a ridiculous law that criminalizes making “false statements” about political candidates. I further predict that, on remand, the district court will strike down this law, the appellate Sixth Circuit will summarily affirm that ruling, and we’ll never hear about the case again except in the context of the “best amicus brief ever.”

Riley (Cato’s brief) / Wurie (Cato’s brief)

The defendant with the smartphone (Riley) will win, while the defendant with the “dumb” (flip) phone (Wurie) will lose — not necessarily due to the difference in technology but because the police’s warrantless search was much more intrusive in the former case than in the latter. How the Court will reach those conclusions I can’t begin to estimate, although I’ll say that the justices are extremely wary of pronouncing legal rules that could be rendered obsolete or unworkable as newer technology develops.

Well, there you have it. Tune in starting Monday at 10am to see what happens in the denouement of the Supreme Court’s October Term 2013. Just remember that these predictions are worth about what you’re paying for them.